On November 4, 2015, in the case of Folta v. Ferro Engineering, 2015 Il 118070 (2015), the Illinois Supreme Court strengthened the exclusivity provision of the Illinois Workers' Compensation Act and Illinois Occupational Diseases Act ("the Acts"). The Court reversed the Court of Appeals, finding that the exclusivity provisions of the Acts prevent employees from bringing civil tort claims against their former employer even when they are precluded from bringing a Worker's Compensation claim due to the passage of time.
The Court's ruling significantly narrows the exceptions to the exclusivity provisions in the Acts, making it difficult for an employee to sue his or her employer within the tort system for an occupational disease arising from their employment. As a result, former employees who develop occupational diseases within the Acts will not be permitted to proceed in tort against their previous employer, even when the time for bringing a claim under the Acts has expired.
Asbestos-related diseases, as well as other occupational diseases, have long latency periods, with the disease often not manifesting until decades after exposure and after the time limitations in the Acts have expired. Employees who have developed these diseases have historically argued that the exclusivity provisions of the Acts were inapplicable and they could proceed in tort against their former employers where the disease did not manifest until after the time limitations of the Acts had expired. The Court rejected this argument, finding that the Acts provide the exclusive remedy against an employer for occupational diseases.
The Court looked to the plain language of the Acts and found that "the General Assembly intended to provide an absolute definitive time period within which all occupational disease claims arising from asbestos exposure must be brought. The fact that Folta was not at fault for failing to file a claim sooner due to the nature of the disease is not a consideration that is relevant to a statute of repose. Although the statute barred Folta's claim before it had yet accrued, that is the purpose of such a provision." Id. at ¶ 34. The Court found that Folta was not without a remedy; the Acts merely restricted the class of defendants, limiting Folta's recourse for wrongful death claims to third parties other than the employer.
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